The next day the court in a written opinion held that the motion was a proper one at this stage of the proceedings, and the attorney for the United States was permitted to open his testimony; but in doing so, the Chief Justice expressed his regrets that the result of the motion “may be publications unfavorable to the justice and to the right decision of the case.” Counsel were impressed with this observation of the court, and an attempt was made to reach an agreement whereby a public disclosure of the evidence at this time might be avoided. It was proposed by counsel for the United States that Colonel Burr’s recognizance be made sufficiently large to insure his appearance to answer the charge of high treason against the United States, but on the following day this proposition was rejected by Colonel Burr. Mr. Hay then proceeded with some reluctance to the examination of witnesses in support of his motion to commit Burr, as “he felt the full force of the objections to a disclosure of the evidence, and the necessity of the court declaring its opinion before the case was laid before the jury.” The attorney for the United States first sought to read the deposition of General Wilkinson, which precipitated the question of the order in which the testimony was to be introduced and its admissibility. The Supreme Court had already decided in the case of Swartout and Bollman that the deposition of Wilkinson might be admitted in evidence under certain circumstances, but that it did not contain any proof of an overt act. The Chief Justice observed that no evidence certainly had any bearing upon the present case unless the overt act be proved, but he would permit the attorney for the United States to pursue his own course as to the order of introducing his testimony. A lengthy argument here ensued, in which Mr. Botts took a conspicuous part. In a most lucid manner he defined the crime of high treason under the Constitution of the United States, and applied it to the issue before the court.